Mello Meats Inc.

Trademark Trial and Appeal Board

Jun 8, 2020

87624232 (T.T.A.B. Jun. 8, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: June 8, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Mello Meats Inc.
_____

Serial No. 87624232
_____

Rebecca L. Wilson of The Dobrusin Law Firm, P.C.,
for Mello Meats Inc.
Christine Martin, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
_____

Before Wolfson, Coggins and Hudis,
Administrative Trademark Judges.

Opinion by Hudis, Administrative Trademark Judge:
Mello Meats Inc. (“Applicant”) seeks registration on the Principal Register of the
mark BARE (in standard characters) for (as amended) “skinless beef sausage,
skinless pork sausage; beef; pork; hamburger; beef snack sticks; processed pork, veal
and beef” in International Class 29.1

1 Application Serial No. 87624232 filed on September 27, 2017, under Trademark Act Section
1(b), 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide intention to use the
mark in commerce.
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The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied to
the goods identified in the application, so resembles the registered mark JUST BARE
and Design as depicted below:

for “poultry,” in International Class 29,2 and the registered mark JUST BARE (in
standard characters) for “poultry; processed chicken,” in International Class 29,3 both
registered on the Principal Register and owned by the same company, as to be likely
to cause confusion, to cause mistake, or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. Applicant and the Examining Attorney
filed briefs. We affirm the refusal to register.
I. Evidentiary Issue
Before proceeding to the merits of the refusal, we address a few evidentiary
matters. The Examining Attorney objects4 to Applicant’s submission of new evidence

2 Registration No. 3655877, issued July 14, 2009. Renewed.
3 Registration No. 4118687, issued March 27, 2012. Declarations pursuant to Trademark Act
Sections 8 and 15, 15 U.S.C. §§ 1058 and 1065, accepted and acknowledged.
4 The Examining Attorney’s evidentiary objections may be found in the Examiner’s Brief at
15 TTABVUE 3-4. Page references herein to the application record refer to the online
database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system. All
citations to documents contained in the TSDR database are to the downloadable .pdf versions
of the documents in the USPTO TSDR Case Viewer. References to the briefs on appeal refer
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with its appeal brief, specifically: (1) pages from PILGRIM USA, JIMMY DEAN,
BUTTERBALL, KOWALSKI, TYSON FOODS and JUST BARE CHICKEN web sites,5 and (2)
copies of U.S. Registration Nos. 5922526 (OLINDAY FARMS), 5916867 (GOLD KIST
CHICKEN), 5905394 (GOLD KIST), 5936357 (THE ARTISAN PIG), 5670204
(BREMERHAVEN), 5820102 (BIRD FARM), 5939199 (TYLER CHICKEN), and
5947457 (FORESTER FARMERS MARKET).6 The Examining Attorney also objects
to Applicant’s arguments referencing definitions of the term “JUST,” because
Applicant did not make these definitions of record during prosecution.
Applicant disputes the basis for the Examining Attorney’s objections, argues that
a portion of the evidence attached to its Appeal Brief already was submitted in its
Request for Reconsideration, and contends that other portions of this evidence were
submitted in direct response to the Examining Attorney’s “final rejection” (denial of
reconsideration) and on this basis should be allowed.7
The record in an application should be complete prior to the filing of an appeal.
Trademark Rule § 2.142(d), 37 C.F.R. §2.142(d). To the extent Applicant’s evidence
was submitted untimely during this appeal, we do not consider it. See In re Inn at St.
John’s, LLC, 126 USPQ2d 1742, 1744 (TTAB 2018) (“The evidence submitted with
Applicant’s appeal brief that Applicant did not previously submit during prosecution

to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket
entry number; and after this designation are the page references, if applicable.
5 Applicant’s Brief, Exhs. D & E, 13 TTABVUE 32-80.
6 Applicant’s Brief, Exh. F, 13 TTABVUE 81-92.
7 Applicant’s Reply Brief, 16 TTABVUE 3.
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(including the request for reconsideration) is untimely and will not be considered.”).
Had Applicant wished to introduce additional evidence after its appeal was filed,
including evidence allegedly in direct response to the Examining Attorney’s denial of
reconsideration, Applicant had the option of filing a written request with the Board
to suspend the appeal and remand the application for further examination.
Trademark Rule 2.142(d); see also In re I-Coat Co., LLC, 126 USPQ2d 1730, 1734 n.15
(TTAB 2018).
Applicant and the Examining Attorney made of record pages from the JIMMY DEAN
and TYSON FOODS websites during prosecution. Applicant also timely made of record
pages from the BUTTERBALL and KOWALSKI websites. While it was unnecessary for
Applicant to file this evidence again with its brief (a practice we discourage), we
consider it. However, we do not consider the PILGRIM USA or JUST BARE CHICKEN web
pages, nor U.S. Registration Nos. 5922526, 5916867, 5905394, 5936357, 5670204,
5820102, 5939199 or 5947457, accompanying Applicant’s Brief, as these items were
not timely submitted during prosecution.
The Board may take judicial notice of dictionary definitions, including online
dictionaries that exist in printed format or have regular fixed editions. See In re
Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014) aff’d 823 F.3d 594, 118
USPQ2d 1632 (Fed. Cir. 2016). We therefore take judicial notice of the following
definitions from the MERRIAM-WEBSTER online dictionary:8

8 https://www.merriam-webster.com/dictionary/just (last visited June 4, 2020),
https://www.merriam-webster.com/dictionary/bare (last visited June 4, 2020).
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• JUST – (as an adjective) (1)(a) having a basis in or conforming to fact or
reason, reasonable, (1)(b) conforming to a standard of correctness, proper;
(2)(a)(1) acting or being in conformity with what is morally upright or good,
righteous, (2)(a)(2) being what is merited, deserved, (2)(b) legally correct,
lawful; (as an adverb) (1)(a) exactly, precisely, (1)(b) very recently, (2)(a) by a
very small margin, barely, (2)(b) immediately, directly; (3)(a) only, simply,
(3)(b) quite, very; (4) perhaps, possibly, almost.
• BARE – (as an adjective) (1)(a) lacking a natural, usual, or appropriate
covering, (1)(b)(1) lacking clothing, (1)(b)(2) obsolete, (1)(c) lacking any tool or
weapon; (2) open to view, exposed; (3)(a) unfurnished or scantily supplied,
(3)(b) destitute; (4)(a) having nothing left over or added, (4)(b) mere, (4)(c)
devoid of amplification or adornment; (5) obsolete, worthless; (as a verb) to
make or lay (something) bare, uncover.
Because we have taken judicial notice of these two terms, the Examining Attorney’s
objection to Applicant’s arguments referencing definitions of the term “JUST,” is
overruled.
II. Likelihood of Confusion - Applicable Law
We base our determination of likelihood of confusion under Trademark Act Section
2(d) on an analysis of all of the probative facts in evidence that are relevant to the
factors enunciated in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ
563, 567 (CCPA 1973) (“DuPont”), cited in B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co.,
315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, “each case

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must be decided on its own facts and the differences are often subtle ones.” Indus.
Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973).
In applying the DuPont factors, we bear in mind the fundamental purposes
underlying Trademark Act Section 2(d), which are to prevent confusion as to source
and to protect registrants from damage caused by registration of confusingly similar
marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331
(1985); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 34 USPQ2d 1161, 1163
(1995); DuPont, 177 USPQ at 566.
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1260 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors may play more or less
weighty roles in any particular determination”). Two key considerations are the
similarities between the marks and the relatedness of the goods. See In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed.
Cir. 2002) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”)).
III. Analysis
We now review the arguments of Applicant and the Examining Attorney in view
of applicable law and the evidence of record. In this appeal, Applicant and the
Examining Attorney focused their arguments and evidence on the similarity or
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dissimilarity of the BARE and JUST BARE marks, the relatedness of the goods
associated with the respective marks, the channels of trade and prospective
purchasers therefor, and the sophistication of the consumers for the respective goods.
A. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir.
2018). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014).
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” In re i.am.symbolic, llc, 123 USPQ2d at 1748. “The focus is on
the recollection of the average purchaser, who normally retains a general rather than
a specific impression of trademarks.” In re Assoc. of the U.S. Army, 85 USPQ2d 1264,
1268 (TTAB 2007).
Applicant argues that:
[T]he cited marks need to be analyzed as JUST BARE and JUST BARE
& design against the mark as applied-for, which is BARE. … There are
clear differences, lack of similarities in appearance, as well as distinct
connotations. For instance, the implication of the word “just” can mean
“based on or behaving according to what is morally right and fair,” or
“exactly,” or “very recently,” or “barely,” or “simply” “only”, or “no more
than.” Each of these definitions of the word changes the next word in
addition to it completely. This makes the cited registrations very
different from that of a singular word “Bare.” The word “Bare” in and of
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itself has numerous definitions, so there is absolutely no way that the
Examining Attorney can know which connotation is implied to each of
the cited registrations and then the applied-for registration to say that
they have similar connotations.9
The Examining Attorney argues:
[T]he applicant’s mark BARE in standard characters is similar to the
registered JUST BARE marks in sound, appearance and commercial
impression. Specifically, the marks include the identical wording BARE,
the applicant has merely deleted the wording JUST from the registered
marks. With the mere deletion of this term, applicant’s mark is likely to
appear to prospective purchasers as a shortened form of registrant’s
mark. [citation omitted] … [T]he mere omission of this wording from the
registered mark does not overcome a likelihood of confusion. [citation
omitted] … [T]he applicant’s mark does not create a distinct commercial
impression from the registered mark because it contains some of the
wording in the registered mark (namely, BARE) and does not add any
wording that would distinguish it from that mark. … [B]ecause the
marks at issue contain the identical wording BARE and applicant has
merely deleted the wording JUST from the registered marks, these
marks are likely to engender the same connotation and overall
commercial impression when considered in connection with the
applicant’s and registrant’s respective goods.

* * *

With respect to [Registrant’s mark JUST BARE and Design] …, when
evaluating a composite mark consisting of words and a design, the word
portion is normally accorded greater weight because it is likely to make
a greater impression upon purchasers, be remembered by them, and be
used by them to refer to or request the goods. [citations omitted]. Thus,
although marks must be compared in their entireties, the word portion
is often considered the dominant feature and is accorded greater weight
in determining whether marks are confusingly similar, even where the
word portion has been disclaimed. [citation omitted]. Accordingly, the
wording JUST BARE is the dominant portion of the registered mark,
and it is confusingly similar with the applied for mark.10

9 Applicant’s Brief, 13 TTABVUE 9-10.
10 Examiner’s Brief, 15 TTABVUE 5-7.
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In reply, Applicant essentially repeats the arguments made in its Appeal Brief,
but emphasizes more forcefully that “[t]he marks should be evaluated as a whole, not
dissected. Therefore, the cited marks need to be analyzed as JUST BARE and JUST
BARE & design against the mark as applied-for, which is BARE.”11 In neither its
Appeal Brief nor its Reply Brief does Applicant separately argue that the design
portion of the JUST BARE and Design mark serves to distinguish this mark from
Applicant’s BARE mark.
In a completely separate line of argument, Applicant argues that:
As a way to compare similar[ly] situated marks, there are numerous
marks in existence that use a part of [a] pre-existing mark. … All these
registrations co-exist peacefully without any issues of confusion and
with possibly related goods/services as well as similar words within each
mark.12
In response to this argument, the Examining Attorney responds that “prior
decisions and actions of other trademark examining attorneys in registering other
marks have little evidentiary value and are not binding upon the USPTO or the
Trademark Trial and Appeal Board.”13

11 Applicant’s Reply Brief, 16 TTABVUE 4.
12 Applicant’s Brief, 13 TTABVUE 10-11; Applicant’s Reply Brief, 16 TTABVUE 6. The
registered marks made of record and compared by Applicant are GARDEN FRESH
GOURMET (Reg. No. 5347365) and GARDEN FRESH (Reg. No. 4556163); HOLLYWOOD
SPOTLIGHT (Reg. No. 5409107) and SPOTLIGHT (Reg. No. 5801139); and TWISTED TEA
(Reg. No. 2574263) and TWISTED (Reg. No. 5835079). Office Action Response of October 1,
2019 at TSDR 14-37. Each compared pair of marks are registered to different parties.
Although Applicant claims there are “numerous marks in existence [on the Federal Register]
that use a part of [a] pre-existing mark”, Applicant made of record only three pairs of such
marks to support its argument.
13 Examiner’s Brief, 15 TTABVUE 7.
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We agree with Applicant that the similarity or dissimilarity of two marks is
determined based on the marks in their entireties, and our analysis cannot be
predicated on dissecting the marks into their various components; that is, the
decision must be based on the entire marks, not just part of the marks. Franklin Mint
Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is
axiomatic that a mark should not be dissected and considered piecemeal; rather, it
must be considered as a whole in determining likelihood of confusion.”). “On the other
hand, in articulating reasons for reaching a conclusion on the issue of confusion, there
is nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985).
Applicant’s argument that the term “JUST” in Registrant’s JUST BARE marks
distinguishes them from Applicant’s BARE mark is not well taken. In fact, “the
presence of an additional term in the [Registrant’s] mark does not necessarily
eliminate the likelihood of confusion if some terms are identical.” In re Mighty Leaf
Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010) (affirming the Board’s
finding that the applicant’s mark ML is likely to be perceived as a shortened version
of the registrant’s mark ML MARK LEES when used on the same or closely related
skin care products).
If, as in this case, a significant portion of both marks is the same (the term
“BARE”), then the marks may be similar notwithstanding some differences. See, e.g.,
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Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d
1157, 1161 (Fed. Cir. 2014) (affirming the Board’s finding that applicant’s mark
STONE LION CAPITAL incorporated the entirety of the registered marks LION
CAPITAL and LION, and that the noun LION was the dominant part of both parties’
marks). In context, we find that the term JUST serves as an adjective modifying
BARE in the registered marks, emphasizing BARE as the dominant term. We thus
find that the marks BARE and JUST BARE appear and sound similar in that they
share the dominant term “BARE,” notwithstanding the addition of the term “JUST”
in Registrant’s standard character mark as well as the additional design features in
Registrant’s JUST BARE and Design mark.
As to meaning and commercial impression, the marks relate to Applicant’s and
Registrant’s respective products (processed chicken and poultry vs. pork and beef
products), such that the term “BARE” suggests the goods have nothing added (such
as filler or meat byproducts). In Registrant’s marks, “JUST” could mean “only” or
“simply” – together, JUST BARE could suggest simply (or only) chicken or poultry,
nothing else.14 These are the only definitions of “BARE” and “JUST” that make sense
in context. That BARE or JUST “may have other meanings in different contexts [as
Applicant argues]15 is not controlling.” In re Carlson, 91 USPQ2d 1198, 1200 (TTAB
2009) (citing In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979)).

14 See the definitions of “BARE” and “JUST” from the MERRIAM-WEBSTER online dictionary
cited above.
15 Applicant’s Brief, 13 TTABVUE 10.
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We find the addition of the term JUST to BARE in the registered marks does not
create a distinct commercial impression from Applicant’s mark, which is the term
BARE standing alone. Thus, we also find that the marks BARE and JUST BARE
have similar meanings and overall commercial impressions.
Regarding the JUST BARE and Design mark of Reg. No. 3655877, we find the
design element does not outweigh the similarity created by the literal portion vis-à-
vis Applicant’s BARE mark. When evaluating a composite mark consisting of words
and a design, the word portion is normally accorded greater weight because it is likely
to make a greater impression upon purchasers, be remembered by them, and be used
by them to refer to or request the goods. In re Aquitaine Wine USA, LLC, 126 USPQ2d
1181, 1184 (TTAB 2018). Therefore, although marks must be compared in their
entireties, the word portion is often considered the dominant feature and is accorded
greater weight in determining whether marks are confusingly similar, even where
the word portion has been disclaimed. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1911 (Fed. Cir. 2012).
As to Applicant’s argument that “there are numerous marks in existence that use
a part of [a] pre-existing mark[,]”16 Applicant’s showing of only three pairs of such
marks on the Federal Register is insufficient to show a purported pattern of federal
registrations. Additionally, the mere omission or addition of wording from a
registered mark does not necessarily overcome a likelihood of confusion. See In re
Mighty Leaf Tea, 94 USPQ2d at 1260. Moreover, prior decisions and actions of other

16 Id.
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trademark examining attorneys in registering other marks have little evidentiary
value and are not binding upon the Board. See In re Nett Designs, Inc., 236 F.3d 1339,
57 USPQ2d 1564, 1566 (Fed. Cir. 2001); In re USA Warriors Ice Hockey Program,
Inc., 122 USPQ2d 1790, 1793 n.10 (TTAB 2017).
The first DuPont factor, therefore, favors a finding that confusion is likely.
B. The Similarity or Dissimilarity and Nature of the Goods

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration.…” DuPont, 177
USPQ at 567. “This factor considers whether ‘the consuming public may perceive [the
respective goods and services of the parties] as related enough to cause confusion
about the source or origin of the goods and services.’” In re St. Helena Hosp., 774 F.3d
747, 113 USPQ2d 1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)).
“Likelihood of confusion must be found as to the entire class of [goods] … identified
if there is likely to be confusion as to any [product] … that comes within the recitation
of [goods] … in that class.” Primrose Retirement Cmtys., LLC v. Edward Rose Senior
Living, LLC, 122 USPQ2d 1030, 1033 (TTAB 2016) (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981)) (Emphasis
original).
The goods need not be identical or even competitive to find a likelihood of
confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d
1471, 1475 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
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1898 (Fed. Cir. 2000). They need only be “related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that [the goods] … emanate from the same source.” Coach Servs., Inc.
v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)
(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)).
Evidence of relatedness may include news articles or evidence from computer
databases showing that the relevant goods are used by the same purchasers;
advertisements showing that the relevant goods are advertised together or sold by
the same manufacturer or dealer; or copies of use-based registrations of the same
mark for both Applicant’s goods and the goods listed in the cited registration. See,
e.g., In re Davia, 110 USPQ2d at 1817 (finding pepper sauce and agave related where
evidence showed both were used for the same purpose in the same recipes and thus
consumers were likely to purchase the products at the same time and in the same
stores).
As evidence of product relatedness, the Examining Attorney made of record copies
of 20 third-party use-based registrations, each depicting the same mark for both
Applicant’s goods and the goods listed in the cited registrations.17 Although such
registrations are not evidence that the registered marks are in use or that the public
is familiar with them, they nonetheless have some probative value to the extent that
they serve to suggest that the goods identified in those registrations are of a kind

17 Third-party registrations made of record with the Office Action of October 17, 2018 at TSDR
9-53, 82-83.
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which may emanate from a single source under a single mark. See In re Albert Trostel
& Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993).
The Examining Attorney also provided pages from 16 websites showing, at each
site, that the same entity promotes and offers for sale under the same mark the types
of goods identified in Applicant’s involved application and the cited registrations:
• NICK’S ORGANIC FARM (http://www.nicksorganicfarm.com/) – featuring
processed beef, sausage, poultry (including chicken).
• MARY’S LAND FARM (https://www.maryslandfarm.com/) – featuring
processed beef, pork, pork sausage, beef sausage, poultry (including
chicken), beef snack sticks.
• SEVEN SONS (https://sevensons.net/store) – featuring processed beef, pork,
poultry.
• PRIMAL PASTURES (https://primalpastures.com/collections/all-products) –
featuring beef sausage, chicken, pork sausage, hamburger, beef.
• GOOD EARTH FARMS (http://www.goodearthfarms.com/) – featuring poultry
(including chicken), beef, and pork.
• ORGANIC PRAIRIE (https://www.organicprairie.com) – featuring poultry
(including chicken), beef, pork, hamburgers, sausage.
• WHITE OAK PASTURES (www.whiteoakpastures.com) – featuring beef,
poultry (including chicken), pork.
• TYSON (https://www.tyson.com/products/seasoned-proteins) – featuring
beef, chicken, pork.
• JIMMY DEAN (https://www.jimmydean.com) – featuring poultry, pork
sausage.
• MASSA NATURAL MEATS (http://www.massanaturalmeats.com) – featuring
pork, pork sausage, chicken.
• FOSSIL FARMS (https://www.fossilfarms.com) – featuring beef, poultry
(including chicken).
• DIETZ & WATSON (https://www.dietzandwatson.com) – featuring poultry
(including chicken), beef, pork, sausages.
• APPLEGATE (https://www.applegate.com) – featuring poultry (including
chicken), beef, pork.
• WELLSHIRE (https://www.wellshirefarms.com) – featuring chicken, pork
sausage, beef, pork.
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• LOBEL’S OF NEW YORK (https://www.lobels.com) – featuring poultry
(including chicken), beef, hamburgers, pork.
• OMAHA STEAKS (https://www.omahasteaks.com) – featuring poultry, veal,
pork, hamburgers, pork sausages, (including chicken).18
We find the third-party registration evidence and the Internet website evidence
together amply demonstrate the relatedness of Applicant’s and Registrant’s goods.
Applicant attempts to distinguish its goods from Registrant’s goods by arguing
that: (1) there are just as many trademark registrations for only one type of meat
product as there are trademark registrations for multiple types of meat products,
including poultry and chicken, and (2) there are multiple online locations that only
sell one type of meat product in addition to those (made of record by the Examining
Attorney) that sell multiple types of meat products, including poultry and chicken.19
Even if we were to consider Applicant’s evidence supporting these arguments,20 it
would not be of assistance to Applicant. Merely because some companies register or
promote their marks in connection with one type of meat product does not mean we
can simply ignore the plethora of evidence made of record by the Examining Attorney
showing the registration and promotion of many companies’ marks in connection with

18 Pages from the NICK’S ORGANIC FARM, MARY’S LAND FARM, SEVEN SONS, PRIMAL
PASTURES, GOOD EARTH FARMS, ORGANIC PRAIRIE and WHITE OAK PASTURES websites were
made of record with the Office Action of April 1, 2019 at TSDR 61-94; pages from the TYSON,
JIMMY DEAN, MASSA NATURAL MEATS, FOSSIL FARMS, DIETZ & WATSON, APPLEGATE,
WELLSHIRE, LOBEL’S OF NEW YORK and OMAHA STEAKS websites were made of record with
the Examining Attorney’s Denial of Request for Reconsideration of October 25, 2019 at TSDR
5-88. Notably, Applicant also made of record portions of some of the same websites as did the
Examining Attorney, namely, TYSON and JIMMY DEAN. See Applicant’s Request for
Reconsideration of October 1, 2019 at TSDR 39-46.
19 Applicant’s Brief, 13 TTABVUE 13-14.
20 As noted above, we only consider evidence filed during prosecution; we do not consider
evidence filed for the first time with Applicant’s Brief.
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multiple types of meat products including beef, pork, poultry and chicken (including
processed chicken).
As noted above, the goods at issue need not be identical to support a finding of
likelihood of confusion. They need only be related in some manner and/or the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that they emanate from the same source. Here, the evidence of record
clearly shows that Applicant’s goods and Registrant’s goods are related because they
are the types of goods provided by the same entities under the same marks. The
respective goods also are sold for the same purpose, non-dairy, non-vegetarian,
protein-based food products for human consumption.
Thus, the second DuPont factor also favors a finding of likelihood of confusion.
C. The Similarity or Dissimilarity of Trade
Channels and Classes of Purchasers
Under the third DuPont factor, we must base our determination regarding the
similarities or dissimilarities between channels of trade and classes of purchasers for
the goods as they are identified in the application at issue and the cited registrations.
Octocom Sys., Inc. v. Hous. Comp. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990); Canadian Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1
USPQ2d 1813, 1815 (Fed. Cir. 1987); Mini Melts, Inc. v. Reckitt Benckiser LLC, 118
USPQ2d 1464, 1471 (TTAB 2016). Neither Applicant’s application nor the cited
registrations contain any limitations as to trade channels or classes of customers, and
we may not read any limitation into them. Squirtco v. Tomy Corp., 697 F.2d 1038,
216 USPQ 937, 940 (Fed. Cir. 1983), quoted in In re Mr. Recipe, LLC, 118 USPQ2d
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1084, 1091 (TTAB 2016); In re Elbaum, 211 USPQ 639, 640 (TTAB 1981) (citing
Kalart Co., Inc. v. Camera-Mart, Inc., 119 USPQ 139 (CCPA 1958)). Therefore, the
goods of both Applicant and Registrant must be assumed to travel in all channels of
trade usual for such goods. Applicant’s attempt to narrow the trade channels or
classes of purchasers for Registrant’s goods21 is unavailing. An applicant may not
restrict the scope of its goods or the scope of the goods covered in the registration by
extrinsic argument or evidence. In re Bercut-Vandervoort & Co., 229 USPQ 763, 764–
65 (TTAB 1986).
The only evidence relating to the trade channels through which the goods at issue
travel is the third-party website evidence submitted by the Examining Attorney and
Applicant, discussed above. This evidence shows that the goods identified in
Applicant’s application, as well as goods identified in the cited registrations, may be
offered via the same virtual marketplace to all relevant classes of purchasers, i.e.,
individuals interested in non-dairy, non-vegetarian, protein-based food products for
human consumption.
It further is common knowledge that various meat products as well as processed
chicken and poultry may be purchased in the same or at the very least adjacent
sections of the same supermarkets, delicatessens and specialty food shops. Thus, the
respective goods, as identified, would be provided in the same or at least overlapping
channels of trade to the same or overlapping classes of purchasers. Applicant even
concedes “that these products can exist in the same store.” Applicant’s

21 Applicant’s Brief, 13 TTABVUE 17-18.
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counterargument, however, that these goods are sold “in different locations” of the
same stores is not supported by any evidence of record.22
Thus, the third DuPont factor weighs in favor of a finding a likelihood of confusion.
D. The Conditions under Which and Buyers to Whom Sales
Are Made, i.e. “Impulse” v. Careful, Sophisticated Purchasing
“The fourth DuPont factor considers ‘[t]he conditions under which and buyers to
whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.’” Stone Lion,
110 USPQ2d at 1162 (quoting DuPont, 177 USPQ at 567). Applicant posits the
following arguments to support its contention that confusion between Applicant’s and
Registrant’s mark and products is not likely: (1) “the nature of the discriminating
consumer[s] of the goods at issue,” (2) “the type of sophisticated purchaser who will
be involved in the purchase of Registrant’s and Applicant’s corresponding highly
expensive and specific goods exercises a greater degree of [purchasing] care,” (3)
“consumers of the products offered by Applicant or the Registrant seek to transact
business with each party based on or to satisfy a specific need or purpose for specific
goods, heightening the degree of [purchasing] care,” and (4) “consumers who purchase
relatively expensive goods … such as the products offered by the Applicant and/or the
Registrant which are specific in the nature of the goods exemplified by Applicant’s
and/or the Registrant’s mark[s] are often seen as ‘discriminating purchasers’.”23
First and foremost, none of these statements are supported in the record.
Counsel’s arguments are not evidence, and we will not rely on them. See Cai v.

22 Applicant’s Brief 13 TTABVUE 17.
23 Applicant’s Brief 13 TTABVUE 15-18.
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Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (quoting
Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney
argument is no substitute for evidence.”)); In re Simulations Publ’ns, Inc., 521 F.2d
797, 187 USPQ 147, 148 (CCPA 1975) (“Statements in a brief cannot take the place
of evidence.”).
On the other hand, the Examining Attorney argues that “poultry, beef and pork
are every day, relatively low-priced food items routinely purchased by the general
public[,] … and subject to impulse buying….” Arguing further, the Examining
Attorney contends that “the risk of likelihood of confusion increases because
purchasers of these products are held to a lesser standard of purchasing care, citing
In re Bay State Brewing Co., Inc., 117 USPQ2d 1958, 1960 (TTAB 2016). “Casual
purchasers of low-cost, every-day consumer items [, says the Examining Attorney,]
are generally more likely to be confused as to the source of the goods. In re Davia, 110
USPQ2d at 1818. As with Applicant, the Examining Attorney does not point to any
evidence in the record supporting these arguments, and we have found none.
Binding precedent requires that we base our decision on the least sophisticated
potential purchasers. Stone Lion, 110 USPQ2d at 1163. Purchasers of poultry
(including processed chicken), pork and meat products are ordinary consumers, most
of whom would be unlikely to exercise a higher degree of care. Further, even were we
to consider care in purchasing the goods in the application and cited registrations,
particularly in the context of similar marks and related goods, even discerning
consumers are not “immune from trademark confusion.” See Harry Winston, Inc. v.
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Bruce Winston Gem Corp., 111 USPQ2d 1419, 1442 (TTAB 2014); see also In re
Research Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (“That the
relevant class of buyers may exercise care does not necessarily impose on that class
the responsibility of distinguishing between similar trademarks for similar goods.”).
Thus, we consider the fourth DuPont factor to be neutral with respect to a finding
a likelihood of confusion.
IV. Conclusion: Likelihood of Confusion
The first, second, and third DuPont factors favor a finding of likelihood of
confusion. The fourth DuPont factor we find to be neutral. Neither Applicant nor the
Examining Attorney presented evidence or argument in their briefs as to the other
DuPont factors and, accordingly, we treat those factors as neutral well. As the marks
at issue are similar, and the goods are related and would travel in overlapping trade
channels to the same or overlapping classes of purchasers, we find that Applicant’s
BARE mark, when used in connection with Applicant’s goods, so closely resembles
the cited JUST BARE and JUST BARE and Design marks as to be likely to cause
confusion, mistake or deception as to the source of Applicant’s goods.
Decision:
The refusal to register Applicant’s mark BARE on grounds of likelihood of
confusion under Trademark Act Section 2(d) is affirmed.